Toward Cooperation between Afghanistan and the International Criminal Court

Hazim, Abdul Mahir, The George Washington International Law Review

Introduction

The Rome Statute of the International Criminal Court (Rome Statute) requires state parties to adopt procedures to facilitate cooperation with the International Criminal Court (ICC).1 Afghanistan, however, has not yet done so. This failure to implement the Rome Statute has inhibited the ICC's ability to investigate and bring to justice potential criminal defendants like the Taliban and the Islamic State, warlords, and suspects among the government's troops and police officers. This Article recommends that Afghanistan move swiftly to incorporate a provision that would facilitate this important relationship, and establish and regulate cooperation between Afghan law enforcement agencies and the ICC, especially with respect to ongoing inquiries.

Under the Rome Statute, the ICC has jurisdiction over grave crimes committed within the territory of member states, including crimes of genocide, crimes against humanity, and war crimes.2 Although the language of the Rome Statute gives priority to the national jurisdiction of state parties to prosecute these crimes, under the principle of complementarity, the ICC has the authority to intervene and assert its jurisdiction when a nation is unwilling or unable to prosecute.3

That said, the ICC is dependent on cooperation with state parties to carry out its mission and operations. Because of this need, the Rome Statute requires state parties to ensure that "there are procedures available under their national law for all forms of coop- eration"4 with the ICC. While Afghanistan ratified the Rome Statute of the ICC on February 10, 2003, to date it has not passed a law facilitating this cooperation. The absence of the relevant required cooperation law impedes the ICC's ability to investigate and prosecute international crimes in Afghanistan.

This lack of action has led to attention and efforts by international human rights organizations to push the Afghan government to fulfill its obligation under the Rome Statute. For example, recently the organizations Human Rights Watch and Transitional Justice Coordination published an open group letter to Ashraf Ghani, president of Afghanistan, that illustrates current concerns about Afghanistan's lack of legislation to establish cooperation with the ICC. It read:

We urge the government [of Afghanistan] to provide consistent and meaningful cooperation with the ICC. Indeed, as a member of the ICC, Afghanistan has a legal obligation to do so. Specifically, we urge the government to facilitate meetings between the ICC and key Afghan government officials, including those in the Ministry of Foreign Affairs and the Ministry ofJustice, as well as the National Security Advisor and the Attorney General. We also urge the government to facilitate the ICC's access to important judicial officers, including prosecutors and justices on the Supreme Court.5

This Article similarly urges the Afghan government to bring its domestic law into conformity with the Rome Statute by promptly enacting a new cooperation law. To support this recommendation, Part I begins by identifying some of the major atrocities that occurred over the past four decades in Afghanistan up until Afghanistan's ratification of the Rome Statute in 2003. It also briefly discusses the complementarity principle of the Rome Statute and its possible application to the current situation in Afghanistan. Part II analyzes those provisions of the Rome Statute that envision cooperation between the ICC and state parties. Part III examines the current relevant rules and regulations in the laws of Afghanistan, including the Afghan Constitution, penal code, criminal procedure code, and law on the organization and the jurisdiction of the Afghanistan judiciary. It highlights the absence of proper regulations that would facilitate cooperation between the ICC and Afghanistan, and exposes a lack of adequate investigation by the ICC. Next, Part IV addresses model approaches to incorporation of cooperation laws by carefully analyzing the United Kingdom's and Australia's International Criminal Court Acts and uses those examples to assist in devising similar legislation for the Afghan context. …

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